Donegal Fuel & Supply Company Ltd v Londonderry Port & Harbour Commissioners

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Costello.
Judgment Date06 May 1992
Neutral Citation1992 WJSC-HC 1721
Docket NumberJ.R. 224/1991
Date06 May 1992

1992 WJSC-HC 1721

THE HIGH COURT

J.R. 224/1991
J.R. 269/1991
DONEGAL FUEL & SUPPLY CO LTD v. LONDONDERRY PORT & HARBOUR COMMRS

BETWEEN

DONEGAL FUEL AND SUPPLY CO. LTD. AND OTHERS
APPLICANTS

AND

THE LONDONDERRY PORT AND HARBOUR COMMISSIONERS
RESPONDENTS

BETWEEN

DONEGAL FUEL AND SUPPLY CO. LTD. AND OTHERS
APPLICANTS

AND

THE MINISTER FOR THE MARINE
RESPONDENT

Citations:

HARBOUR DOCKS & PIERS ACT 1847 S83

LONDONDERRY PORT & HARBOUR ACT 1882 S48

CONSTITUTION SOARSTAT EIREANN 1922 ART 73

LONDONDERRY PORT & HARBOUR ACT 1854 S16

LONDONDERRY PORT & HARBOUR ACT 1854 S17

LONDONDERRY PORT & HARBOUR ACT 1854 S18

LONDONDERRY PORT & HARBOUR ACT 1854 S19

COMMISSIONERS CLAUSES ACT 1847

LONDONDERRY PORT & HARBOUR ACT 1882

LONDONDERRY PORT & HARBOUR ACT 1919

LONDONDERRY PORT & HARBOUR ACT 1920 S6 - 23

LONDONDERRY PORT & HARBOUR ACT 1854 S28

LONDONDERRY PORT & HARBOUR ACT 1854 S54

LONDONDERRY PORT & HARBOUR ACT 1854 S62

LONDONDERRY PORT & HARBOUR ACT 1854 S64

LONDONDERRY PORT & HARBOUR ACT 1954 S89

MOYNE V LONDONDERRY PORT & HARBOUR COMMISSIONERS 1986 IR 299

LONDONDERRY PORT & HARBOUR ACT 1882 S47

LONDONDERRY PORT & HARBOUR ACT 1882 S18

COMMISSIONERS CLAUSES ACT 1847 S83

LONDONDERRY PORT & HARBOUR ACT 1854 S26

HARBOURS ACT (NI) 1970

COMMISSIONERS CLAUSES ACT 1847 S33

CONSITUTION SAORSTAT EIREANN 1922 ART 12

BROWNLIE PRINCIPLES OF INTERNATIONAL LAW 3ED 228

WATERFORD HARBOUR COMMISSIONERS V BRITISH RAIL 1979 ILRM 276

LONDONDERRY PORT & HARBOUR ACT 1854 S20

LONDONDERRY PORT & HARBOUR ACT 1854 S12

HARBOURS DOCKS & PIERS CLAUSES ACT 1847 S33

LONDONDERRY PORT & HARBOUR ACT 1882 S48

MINISTERS & SECRETARIES ACT 1924

Synopsis:

CONFLICT OF LAWS

Legislation

Application - Extent - Ireland - Partition - Statute - Survival - Northern Ireland - Harbour commissioners - Foreign corporation - Duties imposed by pre-1922 legislation - Maintenance of pier - Pier now within the State - Harbours, Docks and Piers Clauses Act, 1847, ss. 33, 83 - Londonderry Port and Harbour Act, 1882, ss. 18, 48 - Londonderry Port and Harbour Act, 1920 - Constitution of the Irish Free State (Saorstat Eireann), 1922, articles 12, 73 - (1991/224 JR & 1991/269 JR - Costello J. - 6/5/92)

|Donegal Fuel & Supply Co. Ltd. v. Londonderry Port and Harbour Commissioners|

STATUTE

Application

Extent - Ireland - Partition - Legislation - Survival - Northern Ireland - Harbour commissioners - Foreign corporation - Duties imposed by pre-1922 legislation - Maintenance of pier - Pier now within the State - Whether legislation continued in force within the State - (1991/224 JR - Costello J. - 6/5/92) - [1994] 1 I.R. 24

|Donegal Fuel & Supply Co. Ltd. v. Londonderry Port and Harbour Commissioners|

HARBOUR AUTHORITY

Powers

Origin - Victorian statute - Ireland - Partition - Statute - Survival - Northern Ireland - Harbour commissioners - Foreign corporation - Duties imposed by pre-1922 legislation - Maintenance of pier - Pier now within the State - Whether legislation continued in force within the State - (1991/224 JR - Costello J. - 6/5/92) - [1994] 1 I.R. 24

|Donegal Fuel & Supply Co. Ltd. v. Londonderry Port and Harbour Commissioners|

1

Judgement of Mr. Justice Costello.Delivered the 6 May 1992.

2

Carrickarory Pier situated on the Donegal side of, and close to the mouth of, Lough Foyle was built in the middle of the last century by the grand jury of the County of Donegal. Later it was vested in the Londonderry Port and Harbour Commissioners, a vesting later confirmed by statute enacted in 1882. Mr. Alan Moyne, Mr. Henry Thompson and a firm called McCauley Brothers Limited claimed, in proceedings instituted in 1982, that they had distributed coal in the Inshowen peninsula for a number of years, that for this purpose they had imported coal by using the pier at Carrickarory, and that in breach of statutory duty the Harbour Commissioners had closed the pier thereby causing them financial loss. What had happened was this. The Harbour Master of the port of Londonderry had given public notice in February 1977 that the pier was to be closed for the discharging and loading of vessels; in August 1980 it was announced that substantial repairs having been carried out the pier would be reopened but only for a limited period and for the discharging and loading of vessels which did not exceed 200 feet in length. After the pleadings were closed in the 1982 proceedings agreed questions of law were tried by me as a preliminary issue. On the 6th of June 1986 I gave my judgment in which I held that the Harbour Commissioners were under a statutory duty to keep the pier open, that in the absence of validly adopted bye-laws the Harbour Master could not permanently restrict its use, and that if any of the Plaintiffs had been deprived of an opportunity to use the pier and had thereby suffered loss they were entitled to damages.

3

Thereafter a strange paralysis seemed to strike the action and nothing happened to it for nearly five years.Finally, the Plaintiffs had it re-entered and having heardevidence on the point I concluded, on the 6th of April 1991, that the Harbour Commissioners had been in breach of statutory duty to each of the Plaintiffs and that each were entitled to damages for loss sustained by them from the 1st of January 1978. Damages have not yet been assessed, disputes on discovery having delayed the relisting of thisaction.

4

On the 30th of July 1991 a letter was written to the Harbour Commissioners on behalf of Mr. Harry Thompson, Mr. Brian Thompson, and the Donegal Fuel and Supply Company Limited. The letter claimed that all three were coal importers who had formally used the pier at Carrickarory, that because it had not been repaired they had been unable to use it, that the Harbour Commissioners were under a statutory duty to repair it and that if they failed to carry out this duty within a specified time an application to the Court for an Order of Mandamus would be brought.

5

Unknown to the Complainants on the 20th of June 1991 (pursuant to statutory powers which I will examine later) the Department of the Environment of Northern Ireland had made an Order empowering the Commissioners to discontinue of abandon the use of any part of the port of Londonderry and its harbour undertaking. Pursuant to the power thus conferred on them the Harbour Commissioners resolved to abandon the repair and maintenance of the pier at Carrickarory and gave public notice of this fact in the Derry Journal of the 12th of September 1991. But for reasons to be explained later a resolution closing the pier was not the only action taken by the Harbour Commissioners. They decided to make bye-laws under statutory provisions contained in section 83 of the Harbour Docks and Piers Act 1847 and requested the Ministerfor the Marine in this jurisdiction, pursuant to section 48 of the Londonderry Port and Harbour Act 1882, to approve them. They gave Notice in the Donegal Democrat of the 12th of September 1991 of their intention to apply to the Minister to allow the bye-laws and in their Notice indicated that the bye-laws if approved would permit the use of the pier only for vessels of less than 16 meters in length. The Notice also indicated that objections to the proposed bye-laws should be lodged with the Minister and would be heard by him in a manner to be directed byhim.

6

In the light of these developments Mr. Harry Thompson, Mr. Brian Thompson, and the Donegal Fuel and Supply Company Limited instituted two separate sets of proceedings. On the 18th of October 1991 they applied ex-parte and obtained leave to institute proceedings by way of Judicial Review in which they sought an Order of Mandamus ordering the Harbour Commissioners to repair the pier at Carrickarory. On the 29th of November 1991 they applied ex-parte and obtained leave to apply by way of Judicial Review for an Order of prohibition prohibiting the Minister from approving the bye-laws. The Harbour Commissioners were joined as Notice Parties in the prohibition proceedings. I heard both proceedings together as the issues involved were closely interlinked.To understand them I must firstly refer to the pre-1922 statutes of the United Kingdom parliament relating to the Harbour Commissioners and the pier at Carrickarory; then to the post-1922 legislation enacted by the Parliament of Northern Ireland and the Orders made thereunder; and finally to Article 73 of the 1922 Constitution by which it is claimed the pre-1922 statutes became part of the law of the Irish Free State and thus, under the 1937 Constitution, partof the present statutory law of the Republic. I will then be in a position to explain the issues which fall for consideration and give my conclusions on them.

THE LAW.
(1) Pre-1922 Statutes.
(a) The Incorporation and the Constitution of the Harbour Commissioners.
7

By section 16 of the Londonderry Port and Harbour Act, 1854 the Londonderry Port and Harbour Commissioners for the time being appointed under the provisions of this Act were declared to a corporation with perpetual succession under the name "The Londonderry Port and Harbour Commissioners" and were the conservators of the port and harbour referred to in the Act subject to its provisions. Sections 17 to 19 contained detailed particulars relating to the qualifications of the commissioners and of the electors by whom commissioners were to be elected - briefly speaking, the commissioners were to be residents and ratepayers in Londonderry and owners of vessels of a specified size, and likewise the electors were to be residents and ratepayers and owners of vessels of a specified size. Commissioners were to be elected in the manner prescribed in the Commissioners Clauses Act, 1847. They were to number 14 (s. 20).

8

The Act of 1854 was amended and extended by the Londonderry Port and Harbour Acts of 1882, 1919 and 1920. The Constitution of the Harbour Commissioners was radically altered by the Act of 1920 (see, sections 6 to 23), as was the...

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